RE KAMAL KHAN

HCAL 162/2021

[2021] HKCFI 2743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 162 OF 2021

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decision (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Order dated 7 July 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 31 August 2021 applying for extension of time to appeal against the Court’s decision.

5.  In his affirmation in support of his application, he said that the Court’s decision is unfair without giving him the opportunity to clarify his case and situation in his country. He is a litigant in person without knowledge of the limitation of time for appeal.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board found that all the core assertions to the non-refoulement claim were fabricated or were wholly unreliable, in particular, his claimed profile as someone who had served in the Afghan Army [139]; that there was no evidence to show that the state of Afghanistan was involved and that he had suffered physical and/or mental suffering of the requisite severity and that there was no evidence to show that the Afghan government was unwilling or unable to afford protection to him. [141-144] He was also unable to show, by evidence, that there was a real chance that the claimed fear would materialize. [146] References are those in the Board’s Decision.

10.  The Court, having examined the Board’s decision, considered that he had advanced no valid grounds for his application and concluded that he had no realistic prospect of success in the proposed judicial review.

11.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. He did not request a hearing in Form 86. The matter was therefore dealt with ex parte without a hearing. He is therefore unable to show that he has any realistic prospect of success in his intended appeal.

12.  In the circumstances, I refuse to extend time for his appeal.  Accordingly, I dismiss his application.